Christy Clark to education minister: fix the bargaining system

Rob Shaw and Tracy Sherlock, Vancouver Sun06.15.2014

Premier Christy Clark has ordered her education minister to rebuild the broken way in which B.C. bargains with its unionized teachers — once the current strike is settled. Clark’s instructions, contained in a mandate letter to Peter Fassbender this week, call for him to “present options to cabinet on ways to restructure collective bargaining with the B.C. Teachers’ Federation” within the next year.Jonathan Hayward
/ THE CANADIAN PRESS

Education Minister Peter Fassbender said he’s already started researching the bargaining issue, with plans to canvass other education ministers not only in Canada but in other countries like the United States, Australia and New Zealand.JONATHAN HAYWARD
/ THE CANADIAN PRESS

British Columbia Teachers' Federation President Jim Iker announces a full-scale strike for school teachers is set for Tuesday, June 17 during a press conference in Vancouver on Thursday June 12, 2014.Ben Nelms
/ THE CANADIAN PRESS

British Columbia Teachers' Federation President Jim Iker announces a full-scale strike for school teachers is set for Tuesday, June 17 during a press conference in Vancouver on Thursday June 12, 2014.Ben Nelms
/ THE CANADIAN PRESS

British Columbia Teachers' Federation President Jim Iker announces a full-scale strike for school teachers is set for Tuesday, June 17 during a press conference in Vancouver on Thursday June 12, 2014.Ben Nelms
/ THE CANADIAN PRESS

British Columbia Teachers' Federation President Jim Iker announces a full-scale strike for school teachers is set for Tuesday, June 17 during a press conference in Vancouver on Thursday June 12, 2014.Ben Nelms
/ THE CANADIAN PRESS

Premier Christy Clark has ordered her education minister to rebuild the broken way in which B.C. bargains with its unionized teachers — once the current strike is settled.

Clark’s instructions, contained in a mandate letter to Peter Fassbender this week, call for him to “present options to cabinet on ways to restructure collective bargaining with the B.C. Teachers’ Federation” within the next year.

The premier doesn’t say how exactly to overhaul the most dysfunctional labour relationship in the province’s recent history — which is set to blossom into a full-scale strike next week. But Fassbender said he’s already started researching the issue, with plans to canvass other education ministers not only in Canada, but in other countries like the United States, Australia and New Zealand.

“I’m looking at some of the best practices there, some of their experiences,” he said. “I think that British Columbia, in terms of militancy, has led the country for many many years, but that said I want to look at what others are doing, where they’re thinking.”

The goal is to get off the “treadmill” of failed negotiations, strikes and confrontation that have defined B.C.’s relationship with its 41,000 teachers for decades, said Fassbender.

The past 20 years of provincial bargaining with the BCTF have produced only two negotiated deals (one after a legislated “cooling-off period), three strikes and three legislated contracts.

The previous bargaining system, where almost 60 local school districts fought for deals with local teacher unions across the province, was even more chaotic, with accusations of teachers whipsawing weaker districts with dozens of strikes and lockouts into lucrative deals that could be leveraged across the province.

Whatever new system grows out of the next year, it will need to be able to produce long-term deals, said Fassbender.

“I’m going to move forward on this with some clear goals: longer term agreements, a mechanism to ensure with a longer term agreement that both parties feel their needs will be protected if the world changes significantly, and it has to go both ways, and then a mechanism to manage issues within the contract rather than setting up a pile of issues over there in the corner until you get back to the bargaining table,” he said.

“Is it going to be easy? Probably not.”

The BCTF was not available for an interview for this story, but president Jim Iker said in a statement that the problem is not with the structure of bargaining.

“The problem since 2002 has been a government too keen to rush to legislation and impose changes for their own political purposes,” Iker said. “In fact, the B.C. Supreme Court ruled that the government did not negotiate in good faith during the 2011-2012 round of negotiations. The court found that government was more interested in provoking a strike than reaching a settlement.”

Any attempt to compare the B.C. teachers’ bargaining structure with other jurisdictions or sectors is meaningless because the ground rules are so different, said Fiona McQuarrie, a business professor with University of the Fraser Valley.

“In some jurisdictions, teachers aren’t allowed to go on strike at all and everything goes to arbitration,” McQuarrie said. “I would be very hesitant to compare Canada and the U.S. because the legislative structures are so different.”

The trick, she said, would be to find somewhere that resembles British Columbia with both rural and urban schools and similar labour laws and school-district structures.

Fassbender already has a mountain of homegrown B.C. research and reports to review into teacher bargaining, by such heavyweights at mediator Vince Ready and former civil servant Don Wright.

Ready had recommended in 2006 tighter schedules for talks and direct representation by the province at the bargaining table.

But he’d also warned that no matter what bargaining structure was researched or ultimately chosen, things would only improve with good will and honest negotiation.

“Unless both sides are committed to collective bargaining, the process will be fruitless no matter what system is adopted or legislated,” he said in a 2006 report.

Wright, a former deputy minister who later became head of British Columbia Institute of Technology, had gone a step further in a 2004, suggesting a form of binding arbitration called “final selection” in which both sides submitted final offers to an independent arbitrator, who then picked one as the default deal.

That idea was not well received by government, the BCTF or labour experts.

The concern is that an unelected arbitrator could make a ruling that would cost taxpayers hundreds of millions of dollars, said Ken Thornicroft, a University of Victoria labour lawyer and professor.

“The government needs to be accountable for its expenditures, and if you turn it over to an arbitrator, they walk away from that accountability,” said Thornicroft.

“The minister of finance is not going to let some third party mess around with several hundred million of taxpayer’s money,” added Mark Thompson, a professor emeritus and labour relations expert at the University of British Columbia’s Sauder School of Business.

The government was stung with binding arbitration in 2002 when a judge ruled in favour of a large wage hike for B.C.’s doctors. The government thought it was too expensive and scrambled to scrap the deal, resulting in service cuts and job action by physicians.

Another focus could be to find ways to redirect any future teacher strikes onto the start of the school year, in September, rather than in May and June when they disrupt graduation ceremonies and provincial exams.

Without a calendar for bargaining, the current system allowed for 16 months of failed negotiations between the BCTF and province before, in a span of a few weeks this spring, the pent-up frustration exploded into a flurry of rhetoric, job action, lockouts, wage cuts, labour relations board rulings and eventually notice of a full-scale provincewide strike.

The Clark government had proposed a potential solution in a January 2013 report that called for future negotiations with the BCTF to begin around March before a contract expires.

Under that proposal, a mediator would produce a public report on the issues and costs by June, propose a settlement by July, and allow for alternative offers or strike notice in August.

Schools wouldn’t start in September until both sides hammered out a deal or teachers agreed not to strike.

“I thought [the framework] had some merit,” said Thompson.

“But one of the problems was [the government] did it behind the scenes, and didn’t engage the teachers, and the teachers were suspicious of it … it wasn’t handled very well.”

Whatever model is chosen, the public needs help in the process too, said Thornicroft. It’s ridiculous for government and teachers to be unable to agree on the most basic details and costs of each other’s proposals, he said.

“There’s no excuse for that. It’s basic arithmetic. It’s not complicated. Either somebody can’t do math, or somebody isn’t telling the truth. Unions and government need to be accountable for what they put forward.”

Perhaps even more significant to the history of acrimonious relations between the B.C. teachers and their employer than the bargaining structure is the attitudes of the participants to each other, McQuarrie said.

“You can have the most ideal bargaining structure in the world, but if the two parties don’t like each other or trust each other when they go into that structure, it’s going to be very hard to come to a resolution quickly,” McQuarrie said. “Sometimes what it takes is a change of the actual people sitting at the table, a change in the bargainers.”

In B.C., though, the troubles have occurred with many different people at the table.

Both sides appear to share the blame for the dysfunction.

McQuarrie also noted the B.C. Supreme Court judgment Iker mentioned, in which the judge found the government bargained in bad faith, deliberately trying to provoke a teachers’ strike in 2012 rather than trying to achieve a negotiated settlement. That court case also found that the government violated teachers’ constitutional rights when it stripped class size and class composition rules from their contract in 2002.

“That’s the sort of attitude that has to change if we’re going to have better bargaining with the teachers,” McQuarrie said. “I’m not trying to paint the BCTF as perfect, but … we have documentation of a pattern of behaviour on the government side that is probably turning out to be something of a barrier to the bargaining.”

Teachers also need to take a hard look at why they are repeatedly one of the only unions in B.C. to fail at bargaining, said Thornicroft.

Part of the problem may be how the BCTF sees itself as the dominant expert on education, while the government only sees it as one player in the system, he said.

“They don’t take kindly when somebody comes along and tells them how to do their job,” said Thompson.

Meanwhile, almost half of B.C.’s public sector unions have signed new collective agreements with the government, leaving the teachers increasingly isolated in their fight with the province.

But they don’t necessarily have the distrust and court history that exists between the BCTF and government, said Jim Sinclair, president of the B.C. Federation of Labour.

“There’s no mystery to this relationship, I don’t think,” he said. “And to say it can never change, I don’t agree with either.”

The bad blood won’t improve at the bargaining table; it will take hard work outside negotiations to mend the relationship, said Sinclair.

That would require a true shift in how teachers and government treat one another.

“The problem is it’s so politicized that it’s very hard to get bargaining in the traditional sense,” said Thompson.

“How do you diffuse these tensions? It has been a long time coming and it will be a long time getting cured.”

Christy Clark to education minister: fix the bargaining system

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